Search form

Featured Topics

To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

On September 1, 1992, the Authority issued an Order directing the
parties to furnish documentation to show: (1) when the parties' negotiated
agreement was executed; (2) when the Agency's disapproval was served on the
Union, and (3) whether the disapproval was served by mail or in person. The
Union's responses addressing the issues in the Order are dated September 9,
October 2, and 8, 1992. The Agency's responses are dated September 15, 23, and
25, 1992. For the reasons which follow, the Authority dismisses the Union's
petition for review for failure to raise negotiability issues which may be
addressed by the Authority under section 7117 of the Federal Service
Labor-Management Relations Statute (the Statute). 5 U.S.C. § 7117.

Section 7114(c)(3) of the Statute requires an agency's disapproval to
be served on the union within 30 days after the date the parties' negotiated
agreement was executed. 5 U.S.C. § 7114(c)(3). The date of service is the
date the disapproval is deposited in the U.S. mail or is delivered in person. 5
C.F.R. § 2429.27(d). Proof of service by mail or by personal delivery is
either "[a] return post office receipt or other written receipt executed by the
party or person served[.]" 5 C.F.R. § 2429.27(b). A petition for review of
negotiability issues filed by a union in response to an agency head disapproval
which is not timely served on the union does not raise negotiability issues
which may be addressed by the Authority under section 7117 of the Statute. 5
U.S.C. § 7117. Absent a timely disapproval, the agreement becomes
effective on the 31st day after its execution, subject to the Statute and
applicable law, rule, or regulation. American Federation of Government
Employees, AFL-CIO, Local 1760 and U.S. Department of Health and Human
Services, Social Security Administration, 28 FLRA 1142 (1987).

The documentation submitted by the parties indicates that the local
parties' negotiated agreement was executed on July 17, 1992. Consequently,
under Section 7114(c)(3) of the Statute, any disapproval of that agreement in
order to be timely, had to be either postmarked by the U.S. Postal Service or
received in person by the Union no later than Sunday, August 16, l992.(1) The August 12, l992, memorandum stating that the
Agency head disapproved portions of the agreement is addressed to the District
Manager, Idaho Falls District, Bureau of Land Management from the Director of
Personnel. The August 12 memorandum does not indicate that a copy was served on
the Union.

The Agency asserts that its August 12 memorandum was served on the
Union by certified mail sometime between August 12 and 15. As proof of service
the Agency provided a signed certified return receipt card. The card is
addressed to Norris L. Slatter, 250 S. 4th Ave., Pocatillo, ID 83201, signed
for by E. Hall, and the date of delivery is August 17, l992. The return
receipt, however, does not establish when the disapproval was delivered to the
U.S. Postal Service. SeeUnited States Marine Corps, Marine Corps
Base, Camp Smedley D. Butler, Okinawa, Japan, 29 FLRA 1068, 1068 at n.1
(1987) (date of mailing was established by party submitting a postmarked
certified mail receipt).

The Agency has not established that the return post office receipt
addressed to Norris L. Slatter was signed for by a representative of the Union.
In addition, the Agency has not provided any documentation to show that the
Union President or any other Union official has ever received the copy of the
disapproval represented by the return post office receipt or that the Union has
been officially served with the Agency's disapproval.(2) Absent proof of service of an Agency head disapproval
on the Union by mail or by personal delivery on or before August 16, the local
parties' July 17 negotiated agreement became effective on Monday, August 17,
1992.

The Union filed its petition for review in the above-captioned case on
the basis of a facsimile transmission (FAX) copy of the disapproval received by
the Union President on August 17, the 31st day after the agreement was
executed. Even if the FAX copy of the disapproval had been transmitted by the
Agency and received by the Union within the 30-day period, such "service" does
not conform to the prescribed form and method of accomplishing and establishing
service in the Authority's Regulations. 5 C.F.R. § 2429.27. See,
for example, American Federation of Government Employees, Local 2776
and U.S. Department of Defense, Armed Forces Radio and Television Service,
Broadcast Center, Sun Valley, California, 41 FLRA 1292 (1991).

The Agency has failed to establish that it served its disapproval on
the Union either by certified mail or in person, as required by Section
2429.27(b) of the Authority's Regulations, within 30 days after the agreement
was executed. 5 U.S.C. § 7114(c)(3). Consequently, the entire agreement,
as negotiated and executed on July 17, 1992, became effective and binding on
August 17, 1992.(3)

Therefore, the Union's petition for review does not raise a dispute
concerning an effective and binding negotiated agreement that is cognizable
under section 7117 of the Statute and section 2424.1 of the Authority's
Regulations.

1. The Agency is in error when it asserts that, "[s]ince
the 30th day falls on the weekend, the final day carries over to Monday, August
17, 1992." It appears that the Agency is attempting a misplaced application of
the provisions of section 2429.21(a) of the Authority's Regulations. 5
C.F.R. § 2429.21(a). Section 2429.21 is entitled, "Computation of time for filing
papers." Section 2429.21 has nothing to do with service of documents between
the parties, it is concerned with the filing of documents directly with the
Authority. There is no provision in the Statute or the Regulations for
extending the 30-day time period in 5 U.S.C. § 7114(c)(3). See,
for example, American Federation of Government Employees, National
Veterans Affairs Council and U.S. Department of Veterans Affairs, Veterans
Health Services and Research Administration, Washington, D.C., 40 FLRA 195,
197 (1991) (the 30-day time period for agency head disapproval of the agreement
expired on Sunday, April 29, 1990).

2. The Union contends that it has never received the
certified copy of the Agency's disapproval signed for by E. Hall. In addition,
the Union states that nothing on the certified return receipt card indicates
that the correspondence was sent to Mr. Slattery in his official capacity as
Union President and that E. Hall is not a Union employee.

3. Provisions in the agreement that are contrary to the
Statute or other applicable law, rule or regulation may not be enforceable. 5
U.S.C. § 7114(c)(3). Questions as to the validity of such provisions may
be raised in other appropriate proceedings.